ADVERTISER MEMBER AGREEMENT: TERMS AND CONDITIONS
Last Updated November 22, 2011
This Caring.com Advertiser Member Agreement (“the Agreement”) states the terms and conditions between “Advertiser” and Caring, LLC, a Delaware corporation located at 2600 South El Camino Real, Suite 300, San Mateo, California 94403 (“Caring.com”). Caring.com operates a website, Caring.com’s Senior Living Services Directory (“Directory”), through which Caring.com offers advertising services. Advertiser desires to advertise on the Directory. The parties agree as follows:
1. Conditions for Advertising Placement. Advertiser grants to Caring.com a non-exclusive, worldwide, fully-paid license for the term of this Agreement to use and publicly display, perform and transmit the Advertiser trademarks, photos, business profiles and other content and descriptions provided by the Advertiser and to incorporate hypertext links on Caring.com websites and those of Caring.com partners and affiliate websites. Caring.com shall not be responsible for any delays in performance due to Advertiser’s failure to deliver required profile information. Advertiser claims no rights to any elements of the Directory and acquires no right to use Caring.com trademarks or any other Caring.com intellectual property, or to claim Caring.com endorsement, unless stipulated in a separate written agreement. Unless otherwise agreed to by the parties, Caring.com shall have all rights to control and/or modify the order in which Advertiser’s search results appear.
2. Advertising Services. All advertising is subject to Caring.com’s prior approval. Caring.com shall use commercially reasonable efforts to provide the advertising services under this Agreement twenty-four (24) hours a day, seven (7) days a week. From time to time, the Directory may not display the advertisement as scheduled or may be inaccessible or inoperable for any reason, including, without limitation, equipment malfunctions, periodic maintenance, or causes which are not reasonably foreseeable by Caring.com, for example, interruption of transmission, or network attacks or failures. Caring.com does not guarantee to provide Advertiser with any specific number of leads, nor does it make guarantees, representations or warranties regarding a customer’s level of interest, their ability to pay, the accuracy of the information provided by the customers, or that any customers will enter into a contract with Advertiser’s facility, nor does Caring.com guarantee that Advertiser will successfully contact each customer. Caring.com is not involved in, nor does it have any responsibility for, Advertiser’s contracts with customers, their creditworthiness, or any payments to Advertiser or any disputes that may arise between customer and Advertiser. Caring.com is free to contract with other eldercare facilities and services, as this is not an exclusive contract. Caring.com provides customers with the ability to rate their experience working with Advertisers via Customer Ratings & Reviews.
3. Fees and Payment. Caring.com offers pre-paid monthly and annual installments. Unless other payment terms have been agreed to by Caring.com, Advertising fees will be charged to Advertiser’s credit card immediately following receipt of billing information from Advertiser. Monthly agreements continue on a month-to-month basis unless Advertiser provides 30 days advance notice of termination.
4. Advertiser Warranty. Advertiser warrants that Advertiser has the authority to enter into and perform this Agreement and the information submitted by Advertiser: (a) shall not violate any rights under any state or federal laws including those relating to privacy; (b) does not contain any content, or link to any content, that violates any applicable law or regulation or third party rights, infringes any third party proprietary or intellectual property right, and/or breaches any contract or tort right of any person; and (c) does not contain any content that may be considered by a reasonable person to be obscene, defamatory, or constitute abusive or malicious statements.
5. Disclaimer and Limitation of Liability. THE SERVICES AND SITE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. CARING.COM DOES NOT WARRANT ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE ADVERTISING SERVICES. CARING.COM MAKES NO OTHER WARRANTIES, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT. ADVERTISER AGREES THAT IN THE EVENT CARING.COM FAILS TO PUBLISH ANY ADVERTISEMENT, OR MAKES A MATERIAL ERROR IN THE PUBLICATION OF ANY ADVERTISEMENT, ADVERTISER’S SOLE REMEDY IS, AT THE SOLE DISCRETION OF CARING.COM, EITHER THE CORRECTION OF THE ERROR OR A REFUND OF THE COST OF THE ADVERTISEMENT DURING THE PERIOD IN WHICH THE ERROR OCCURRED. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ITS SUBJECT MATTER. IN NO EVENT SHALL CARING.COM’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID BY ADVERTISER TO CARING.COM HEREUNDER.
6. Indemnification. Advertiser agrees to indemnify, hold harmless and defend Caring.com and its directors, officers, employees and agents from and against any third-party action, claim, demand, dispute or liability, including reasonable attorneys’ fees, (a) arising from or relating to the information submitted by Advertiser, or (b) arising from a breach of Advertiser’s Warranties as set forth in Section 4, or (c) arising from Advertiser’s conduct or relationship with any client, regardless of whether that client used the advertising services. Caring.com will have no authority to settle any claim on behalf of Advertiser.
7. Termination; Charges. Caring.com shall have the right to cancel this Agreement at any time for any reason. In the event Caring.com cancels this Agreement for reasons other than a breach of this Agreement, Caring.com shall refund any sums paid by Advertiser for services beyond the date of cancellation on a pro rata basis. Advertiser agrees to pay for advertising immediately following acceptance of this Agreement by Caring.com. Advertiser may cancel this Agreement at any time, however, all payments are non-refundable.
8. Governing Law and Venue. This Agreement will be governed by and in accordance with the laws of the State of California, without regard to conflicts of law principles thereof or to the United Nations Convention on International Sale of Goods. For purpose of all claims brought under this Agreement, each Party hereby irrevocably submits to the non-exclusive jurisdiction of the state courts of the State of California located in San Mateo County and the courts of the United States for the Northern District of California. Advertiser waives all defenses of lack of personal jurisdiction and forum non conveniens.
9. Confidential Information. “Confidential Information” means any proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customers, customer lists, markets, software, developments, marketing, finances, or other business information disclosed between the parties either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that either party can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the other party, (ii) becomes publicly known and made generally available after disclosure other than through the other party’s action or inaction, or (iii) is in either party’s possession, without confidentiality restrictions, prior to the time of disclosure by either party as shown by that party’s files and records. The parties shall not at any time: (i) sell, license or transfer any of the other party’s Confidential Information, (ii) disclose or otherwise make available to any person or entity any Confidential Information (other than to those of the party’s employees who are bound in writing by use and confidentiality restrictions which are no less protective than those contained in these Terms and Conditions and who have a legitimate need to know such Confidential Information), or (iii) access, use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to other party and in accordance with these Terms and Conditions. The parties agree to take all measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the other party’s the Confidential Information. If required by law to disclose Confidential Information, the party may do so provided that: (a) prompt written notice of such requirement is given to the other party prior to such disclosure, (b) at the other party’s request, the party assists in obtaining an order protecting the Confidential Information from public disclosure, and (c) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information shall remain the disclosing party’s personal property, and all documents, electronic media, and other items containing or relating to any Confidential Information shall be delivered to the disclosing party, destroyed or uninstalled immediately upon the disclosing party’s request, or upon termination of this Agreement. Caring.com’s advertising rates and lead fees shall be considered Caring.com’s Confidential Information.
End user personal data supplied on lead forms (“Leads”) shall be used by Advertiser solely for the purpose of contacting the user with offers for products or services directly related to original advertisement/solicitation. Advertiser shall use industry accepted standards to care and protect the user data supplied in the Lead from unauthorized collection, use and/or disclosure and shall not share the user data with any third parties, including affiliates; provided however, that Advertiser may share the user data supplied in the Lead with third parties and affiliates when doing so is necessary to make the offer for the products or services available to the user and in accordance with Advertiser’s privacy policies. Advertiser shall require the third parties and affiliates to use the same degree of care Advertiser uses to protect the user data from unauthorized use or disclosure.
10. Assignment. Neither party may, without the prior written consent of the other party (which shall not be unreasonably be withheld), assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void. Notwithstanding the foregoing, a party may assign its rights and benefits and delegate its duties and obligations under this Agreement without the consent of the other party (1) if necessary to satisfy the rules, regulations and/or orders of any federal, state or local governmental agency or body, or (2) in connection with a merger, reorganization or sale of all or substantially all relevant assets of the assigning party; in each case provided that such successor assumes the assigning party’s obligations under this Agreement.
11. Miscellaneous. Caring.com may change these Terms and Conditions at any time in its sole discretion. If any provision of this Agreement is declared invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. The relationship between the parties hereto shall be that of independent contractors. The failure of either party to exercise any right provided for herein shall not be deemed a waiver of any right hereunder. Neither party shall have any liability for any failure or delay (except the obligation to make payments) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of third parties, third party equipment not within the sole control of the party, or any other condition affecting production or delivery in any manner beyond the reasonable control of the party.